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COA rejects ineffective-assistance claims; rejects state’s broad guilty-plea waiver rule

State v. Skylard R. Grant, 2020AP404, 7/20/21, District 1 (not recommended for publication); case activity (including briefs)

Grant pleaded to reduced charges on the second day of his trial for homicide, being a felon in possession of a firearm, and possessing THC with intent to deliver. He claims his trial lawyer was inadequate in various ways during the trial. The court rejects Grant’s specific claims, but it also rejects the state’s expansive reading of State v. Villegas, 2018 WI App 9, 380 Wis. 2d 246, 908 N.W.2d 198. The state had argued that counsel’s alleged failings were waived by the guilty plea because they did not occur during the actual process of procuring the plea. The court of appeals says Villegas‘s waiver rule is not quite this unforgiving; it clarifies (in accord with Supreme Court case law) that claims of ineffective assistance survive a guilty plea where, “but for counsel’s errors, [the defendant] would not have pled guilty.”

Antwone Berry’s body was found in a ditch with multiple gunshot wounds. Various witnesses said the last time they’d seen him alive was at a gathering at the home of one J.R.  This J.R. told the police that Grant was at the gathering, and was drunk and arguing with Berry, and that he threatened to shoot Berry. J.R. also said Grant drove off with Berry and returned without him, after which he thoroughly cleaned the vehicle. Another witness told police that Grant had told him he’d “had to take care of” Berry and that he wouldn’t be seen again. Police got a warrant and searched Grant’s home, where they found marijuana, a digital scale and a handgun. They also looked at Grant’s cell phone records, which revealed a connection with a tower near where Berry’s body was located.

On the first and only day of the trial, Grant’s counsel deferred making an opening statement. The next day, the parties reached a plea agreement; Grant was ultimately sentenced to prison.

Grant filed a postconviction motion raising several claims that his lawyer was ineffective: for failing to file a Denny motion to present evidence that J.R. had killed Berry; for not filing a notice of alibi; for not providing a witness list before trial; for not making an opening statement; and for failing to prepare for trial adequately. All were rejected.

On appeal, the state argues that Villegas bars Grant’s claims, but the court of appeals disagrees, saying the state “overstates the limitations of the ineffective assistance exceptions as set forth in Villegas.” (¶23). As the court explains, the defendant in Villegas alleged that his lawyer had been ineffective during the proceedings that led to his waiver from juvenile court into adult court. He did not show, though, that these errors brought about his later decision to plead guilty. (¶25). Per State v. Bentley, 201 Wis. 2d 303, 315-16, 548 N.W.2d 50 (1996) (which was simply following Hill v. Lockhart, 474 U.S. 52, 59 (1985)), this is what’s required to show prejudice for an ineffective-assistance claim in a plea case: that absent counsel’s failings, the defendant “would not have pleaded guilty and would have insisted on going to trial.” It is not, contrary to the state’s argument, that any deficient performance by counsel must have occurred during the plea process.

Turning to Grant’s claims, the court says that what he’s alleged is a not totally clear and perhaps contradictory. “[H]e states that but for counsel’s ineffective assistance, there would have been a different outcome—that is, J.R. would have been proven guilty—and that because of counsel’s deficiencies, he ‘would have accepted any [plea] deal.'” (¶28). The court says its “arguabl[e]” whether Grant has met the pleading requirements of Bentley, but addresses the claims anyway. (This draws a brief concurrence from Judge Dugan, who would have held the claims waived and declined to consider them.)

Beginning with the Denny issue, the court concludes that Grant has alleged the necessary facts to make out the claim.

Here things go awry. The court nevertheless finds the claim without merit because the “evidence” (scare quotes in original) would have been testimony by Grant, and the court says a defendant’s choice to testify is “risky.” (¶32). So what? The question is whether Grant would have insisted on a trial, not whether that choice would have been risk-free. The court also says–without explaining how this is true–that a Denny motion would have been unnecessary for trial counsel to question J.R. about Grant’s allegations. Again, so what? Even accepting the court’s (again, puzzling and perhaps incorrect) speculation about what defense counsel might have done at trial, it doesn’t prove anything about whether Grant would have decided to go ahead with trial if counsel had filed the Denny motion. (¶33).

The court also rejects Grant’s other IAC claims, finding that he’s failed to show how any of his trial lawyer’s alleged failings led to his plea. (¶¶35-39).

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